Highlights from MurthyChat Session: 30.Sep.2013

In frequent sessions of our Chat, Sheela Murthy and other senior attorneys provide guidance that clarifies the law in real time. For details on chat participation, click here.

Question: Can H1B visa be denied while stamping, if all the family members are in U.S.?

Senior Attorney:

The H1B visa stamping application has nothing to do with the location of family members. It can be denied if there is not enough proof that the case is valid and qualifies under the consulate's standards. If there are questions and uncertainties about the case, it would be best to get some guidance from Murthy Immigration Services, Pvt. Ltd. in Chennai. That affiliate of the Murthy Law Firm assists with visa issues at the consulates.

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Question: Do I need an employer in order to file as EB2 under Exceptional Ability?

Senior Attorney: Yes, it is necessary to follow the standard PERM labor certification process to use the EB2 Exceptional Ability option. However, the educational and experience requirements set out in the PERM do not have to be EB2 level. On MurthyDotCom, we have an article about this approach, which is appropriate in some situations. This type of case is different from the EB1 self-sponsored extraordinary ability category.

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Question: How long can an individual be without a job when s/he loses the current job (as a result of jay off) while working on H1B and having a valid employment-based EAD with I-485 pending for more than 180 days?

Senior Attorney:

H1B workers are out of status as soon as they lose their jobs. There is no grace period. The situation is quite different for those with I-485s and EADs, particularly after 180 days. A person is considered to be in a period of authorized stay based on the I-485. While it is important to find a new job as quickly as possible, there is not a specific time limit, other than the fact that it is important to have a proper basis for the green card case in the form of a job offer. So, the urgency of this depends upon the priority date, as that determines the timeframe for potential approval as well as the likelihood of the issuance of an RFE for proof of employment.

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Question: I am in the 5th year of my H1B with approved I -140 (civil engineering). Is it possible to transfer and/or extend an H1B in the IT field, based on an approved I -140 (civil engineering)?

Senior Attorney:

Yes, the ability to extend the H1B beyond the sixth year, based on an approved I-140 does not require any similarity between the jobs involved. If a person has the qualification for both the civil engineering job and an IT job, then s/he can obtain H1B extensions for the IT job based on the I-140 for civil engineering.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.